Reflections on the International Legal System as a Constitution

Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. This post is adapted from “The International Legal System as a Constitution” in: J.L. Dunoff/J.P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge UP 2009), pp. 69-112

International lawyers have often construed international constitutionalism as an offspring of the institutionalization of international law. An international constitutionalism would be able to draw the conclusion from the increasing institutionalization of the international realm by applying principles known from domestic constitutional law to the international system, resulting in a universal Kantian “state of law,” away from the “state of nature” or anarchy of international relations. In the same vein in which a constitution unifies the domestic polity in one legal superstructure, a developed, institutional reading of international law would unify the international community in one coherent constitutional structure.

 Today, this institutionalist reading of international law has fallen prey, in a certain regard, to its own success. While an increasing institutionalization and organization of international organization can hardly be doubted, the general impression is one of fragmentation rather than constitutionalization of the international legal system. In other words, the diverse and divergent institutions fail to come under a single scheme; rather, the systemic character of international law seems threatened by a multiplicity of international régimes without obvious coherence. The constitutionalization of partial régimes appears as antidote rather than confirmation of the constitutionalization of the international legal system as a whole. Calls for a true constitutionalism that would put the different subsystem into order confirm this intuition.

The absence of a single world constitutional order, however, should not blind us to the ever-increasing relevance of international cooperation and concomitant legal regulation for individual human beings. International constitutionalism needs to be decoupled from the building of new international structures. Rather, what is called for is a constitutional mind-set (Martti Koskenniemi) or a constitutional reading of the international legal foundations on which today’s fragmentation of international legal rules rests. Rather than asking whether the constitutional structure of the Charter organs are sufficiently similar to those of the state, my piece reflects on whether and how the international legal order fulfils the background principles for a constitutional order in the constitutional tradition. If not, the resistance to international regulation will likely – and justifiably – grow, and the accommodation needed for international order will not be forthcoming.

The development of constitutional thought in twentieth-century international law moves from a formal concept of constitutionalism – such as the existence of a formal unity of international law derived from one single, hierarchically superior source – to a more substantive conception that deals with the emergence of hierarchies between different rules and principles of international law. In its first part, my contribution retraces this development of constitutional perspectives of international law, from the early system building of Kelsenian positivists to the recent challenges of fragmentation. In this part, the definition of constitutionalism largely follows a deductive methodology.

In the second part, the contribution proceeds to an analysis of the typical substantive elements of a constitution in the Western tradition. As yardsticks for a constitutional understanding of the international legal order, it refers to democracy, the rule of law or Rechtsstaat, the separation of powers, as well as the basic conditions of legal subjects, namely the basic rights of states, on the one hand, and human rights, on the other. Finally, the contribution looks at the question of whether contemporary international law embodies some level of solidarity between States and among human beings.

To identify the elements of a hard constitution, the contribution departs from the domestic ideal type of a constitution. In a functionalist vein, we ask whether or not domestic constitutionalism can fulfil similar functions at the international level. The transfer of domestic constitutional principles to international law is however fraught with difficulty, in particular because international law must always take into account at least two levels of analysis: the interstate level of classical international law and the inter-individual level of world citizens at large. In this substantive perspective, only an international order that reaches the level of individual human beings can be called “constitutional.”

International law is a system insofar as it is bound together by the application of a limited set of formal sources and of instruments to apply them, such as rules of interpretation, as well as a few basic principles such as pacta sunt servanda or responsibility for wrongdoing. In the formal sense, international law can be regarded as a system but hardly as a constitution, however: the constitutional characteristics of the UN Charter are incomplete, at best; and, as the fragmentation debate has shown, an overall international constitution that would balance the different subsystems toward a coherent whole is largely absent. There is little hope for an ultimate judicial decision of clashes among different values, principles, or subsystems once and for all. Balancing of rights and obligations under different subsystems substitutes for the lack of a comprehensive judicial structure or an unequivocal judicial hierarchy. Only the strict and formalist positivists of the early twenthieth century would regard such a system a constitution.

 Rather, a full constitutionalism demands the respect for substantive constitutional principles, in particular democracy and the rule of law, as well as a separation of powers, human rights, and the existence of a bond of solidarity among the members of the international community. In the multilevel system that an international constitutionalism would entail, these criteria need to be modified. Even then, however, the international legal system does not appear to follow them, in spite of recent advances in the law – from the partial constitutionalization of trade law and the emergence of international criminal law to the monopolization of the legitimation of interstate violence by the UN Charter.

As long as a strong constitution in this sense is lacking, two options stand out: One option would lead back to the domestic control of international organizations, either by regional or by domestic courts. However, this route implies a divergence of protection between different states or regions and thus contradicts the perceived need for global regulation from the financial markets to global warming. A second option appears to be more promising: namely, a constitutional reading of the constitutive instruments of international organizations. Such an understanding of international rule, both by political and judicial bodies, could lead the way toward the very checks and balances and respect for human rights and state freedoms that the Western constitutional tradition embodies. Finally, while an international “demoi-cracy” is yet to be established, the strengthening of deliberation and the inclusion of the individual stakeholders in international decision-making may lead to a better legitimacy and therefore an increased acceptance of international decisions at the domestic and individual levels.

In the age of globalization and functionalization, the very idea of a comprehensive ordering of any legal realm becomes ever-more illusory. One may well read the insistence of domestic courts on their constitutional prerogatives, in the strong version of the U.S. Supreme Court or the weaker one of the German Bundesverfassungsgericht, as the heroic but ultimately futile attempt to stop the clock, as an attempt to save what can be saved of democratic constitutionalism at a time when the ability of any government to regulate the world according to the wishes of their electorates appears to be waning.

A constitutional reading of international law should avoid the parochial view of domestic law, but also of the international legal subsystems; rather, it should strive for a more comprehensive balancing of rights and interests beyond the narrow confines of a specific subsystem. It should use the potential for checks and balances to hold all holders of public power accountable, whether state representatives or international civil servants. It should allow for the protection of human rights against both state and international holders of power. Finally, a constitutional understanding of the UN Charter would have us strive to improve the international system in a way that would lead it closer to our ideas of an ideal constitution, render it more democratic, more respective of individual rights, more consonant with the rule of law.